STATE OF NEW JERSEY VS. JUAN A. FERRER, JR. (15-03-0210, BURLINGTON COUNTY AND STATEWIDE)
A-2474-15T2
| N.J. Super. Ct. App. Div. | Aug 21, 2017Background
- Plaintiff Gracioso Balacuit owned a Jersey City home insured by Tower National Insurance; he reported structural collapse in December 2012.
- Tower's engineer inspected and concluded damage resulted from a failed sewer pipe beneath the house; plaintiff's engineer agreed the sewer leak caused soil erosion and settlement that damaged the dwelling.
- The homeowner's policy contained an "earth movement" exclusion (including earth sinking, rising, shifting) and a general exclusion precluding coverage for earth movement "regardless of any other cause or event contributing concurrently or in any sequence to the loss" (an anti-sequential clause).
- Tower disclaimed coverage in February 2014 based on those exclusions; plaintiff sued, and after discovery Tower moved for summary judgment.
- The Law Division granted Tower's motion, finding the exclusions unambiguous and applicable; plaintiff appealed and the Appellate Division affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether policy exclusions for earth movement and related water/ sewer damage are ambiguous | Balacuit: policy language is ambiguous, raising factual issues precluding summary judgment | Tower: language is clear and excludes coverage for earth movement and related water damage, including via anti-sequential clause | Court: Policy unambiguous; exclusions apply; summary judgment proper |
| Whether causal sequence (pipe leak causing erosion causing earth movement) avoids exclusion | Balacuit: coverage because initial cause was a leaking sewer pipe, not an excluded earth movement | Tower: anti-sequential clause bars recovery regardless of sequencing or concurrent causes | Court: Anti-sequential clause controls; sequencing irrelevant; exclusion applies |
| Whether there is a material factual dispute about cause sufficient to defeat summary judgment | Balacuit: differing factual inferences could support coverage | Tower: undisputed experts both attribute loss to earth movement from sewer failure; no genuine issue of material fact | Court: No genuine dispute; summary judgment appropriate |
Key Cases Cited
- Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558 (de novo review of summary judgment standard)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (summary judgment standards and non-moving party burden)
- Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165 (policies interpreted by plain meaning; liberally for insured when ambiguous)
- Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231 (use prior cases to interpret policy language)
- Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369 (de novo review of legal questions)
- Simonetti v. Selective Ins. Co., 372 N.J. Super. 421 (policy not ambiguous merely because parties offer competing interpretations)